Aramia v TAC
[2012] VCC 619
•18 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-03801
| DANIEL JOHN ARAMIA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 March 2012 | |
DATE OF JUDGMENT: | 18 May 2012 | |
CASE MAY BE CITED AS: | Aramia v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 619 | |
REASONS FOR JUDGMENT
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Catchwords: Section 93(4) of the Transport Accident Act 1986 (Vic) – Section 93(17)(a) organic injury – Section 93(17)(c) severe long-term mental disorder or severe long-term behavioural disturbance or disorder – Mobilio v Balliotis [1998] 3 VR 833 – Hunter v TAC [2005] VSCA 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Richards S.C. with | Zaparas Lawyers |
| For the Defendant | Mr D. Brookes S.C. with | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1 This is an application pursuant to s. 93(4) of the Transport Accident Act 1986 (Vic) (“the Act”) for leave to bring proceedings for the recovery of damages in respect of injury sustained by the plaintiff as a result of a motor vehicle accident on 4 June 2008.
2 Section 93(6) of the Act provides that a court must not give leave unless it is satisfied that the injury is a serious injury. Section 93(17)(a) of the Act defines a serious injury as “a serious long-term impairment or loss of body function”. Section 93(17)(c) further defines a serious injury as including “a severe long-term mental or severe long-term behavioural disturbance or disorder”.
3 In this case, the plaintiff alleges that, as a result of the accident, he suffered a serious long-term impairment or loss of body function involving the use of his spine, left hip and left lower limb. In addition, the plaintiff claims that, as a consequence of the accident, he also suffers from a severe long-term mental or behavioural disturbance or disorder, including depression and anxiety.
4 The onus is on the plaintiff to persuade me that he suffered a serious injury as defined in the Act and the relevant authorities. In assessing the consequences of the injury, regard may be had to both pain and suffering and pecuniary disadvantage.
5 The plaintiff, the plaintiff’s treating GP, Dr John Pragastis, and the plaintiff’s psychologist, Mr John McCaffery, all gave evidence. The parties otherwise relied on their respective court books and a number of other documents which were tendered during the hearing.
The plaintiff’s background
6 The plaintiff’s background was set out in his affidavits, sworn 20 September 2010 (“the first affidavit”) and 27 October 2011 (“the second affidavit”), the contents of which he adopted when giving evidence. He was born on 19 April 1984 and he is now 28 years old. After leaving school, having completed year 9, he had various jobs, including working in pizza shops, at Ultimate Performance Imports and at Jefferson Ford wrecking yard, stripping cars and undertaking engine conversions on imported vehicles.
7 In November 2007, the plaintiff commenced employment as a courier driver with Group Messengers. Firstly, he drove his ute but then he purchased a three tonne truck which he used to make deliveries and pick-ups. The plaintiff worked 40–50 hours full-time. The work was busy and mostly involved driving, lifting and carrying boxes of different weights and getting in and out of the truck throughout the day.
The transport accident
8 On 4 June 2008, at approximately 1:30 pm, the plaintiff was on his way to make a delivery in St Kilda when he decided to stop and have a coffee. He parked his truck opposite the Flinders Street Station, on the north side of the street, and went to get the coffee. When he returned to his car, he put his hand on the driver’s side door handle and was about to enter the driver’s side of the truck when he was hit by a red car.
9 The headlight and front bumper of the red car made contact with the plaintiff and he was thrown into the driver’s mirror on his truck. The driver of the red car did not stop and the plaintiff gave chase. The driver eventually stopped near the corner of Flinders and Russell Street and the plaintiff obtained her details.
10 The plaintiff was able to get back into his truck and he drove to St Kilda to complete the delivery. However afterwards, he pulled over near Chapel Street in Prahran as he had started to experience pain into his lower back and left hip. He sat in his truck for about 10 minutes and was shaken by what had happened. Although he was able to drive home, he had trouble pressing the clutch down and felt very stiff when getting out of the car.
Medical treatment
11 When the plaintiff arrived home, his girlfriend drove him to the Dandenong Valley Hospital, where he had x-rays and was given a pair of crutches. He was also given a certificate for nine days off work.
12 For two or three weeks after the accident, the plaintiff found it very painful to walk because of the pain in his left hip and leg and he used the crutches to move around. Throughout June and July 2008, he re-attended the hospital for outpatient physiotherapy treatment.
13 In July 2008, he attended his then general practitioner, Dr Marco Sorsok, who referred him to a physiotherapist. The plaintiff attended physiotherapy for about a month. He also tried to go for daily walks in the hope that his back would improve. However, he continued to have constant lower back pain in addition to frequent pain and numbness into his left hip and down his left leg.
14 The plaintiff was unable to work for approximately three months. In around September 2008, he attempted to return to work as a courier, driving his Corolla, but he was not able to cope with the driving and level of activity. The pain in his lower back became worse, as did the numbness in his left leg. In his first affidavit, he stated that his back felt like it was “freezing up” and that it was “extremely stiff” (at p. 4).
15 In late 2008, the plaintiff changed his general practitioner to Dr John Pragastis. Then in January 2009, he started chiropractic treatment with Dr John Pantazopoulos, who massaged and manipulated his back. In addition, Dr Pantazopoulos arranged for the plaintiff to have an MRI scan of his lower back on 21 May 2009, the results of which were normal.
16 It was apparent from the plaintiff’s first affidavit and his evidence that he became very frustrated with the WorkCover process. In fact, he became so upset with WorkCover that in September 2008, he withdrew his claim but it was reinstated in April 2009.
17 In June 2009, the plaintiff returned to work carrying out some administrative duties. At first, he worked three hours per day, four days per week. This was later reduced to four hours per day for two days per week because of increasing back pain. As the plaintiff’s back pain was affecting him psychologically, he was referred to Mr John McCaffery, a psychologist, whom he first saw in November 2009.
18 At the end of December 2009, the plaintiff stopped working due to his back pain and because it was affecting him psychologically. He tried doing some delivery work but found it painful sitting for long periods of time and his back was often jolted when he went over bumps in the road.
Consequences of the organic injury
19 In his first affidavit, the plaintiff complains of the following symptoms:
·constant stiffness and pain in his lower back;
·numbness and pins and needles in his left leg;
·some days he has pain and swelling around his left foot;
·pain in his left hip which is aggravated by bending and lifting;
·sleeping badly because of the pain in his lower back which is worse in the mornings;
·often taking breaks when he is out for a walk; and
·occasionally, when his left leg is very sore, walking with a limp.
20 In his second affidavit, the plaintiff stated that he believed that his condition had worsened. Since his previous affidavit, he had found it increasingly difficult to sleep at night due to the pain and stress caused by his injuries. He was lucky to get two or three hours per night. As a result of the lack of sleep, he found it very difficult to concentrate and he was anxious and irritable most of the time.
21 With respect to his current medication, the plaintiff’s evidence was that he was trying not to take any. The last time he had taken sleeping tablets was maybe a month and a half to two months ago. The last time he had used Endep was three weeks ago and his last prescription had been three to four months ago. He took Panadeine Forte “maybe twice a week”, but was trying to stop (transcript pp. 13-14).
22 In his first affidavit, the plaintiff referred to his love of working on cars. He had a number of cars at home that he had been stripping and rebuilding. This had been his major hobby. When he was cross-examined about this hobby, the plaintiff stated that he “loved having cars like this, it was a passion” (transcript p. 8). Prior to the accident, he had spent “nearly every night after work working on the cars with the boys”. He would customise the cars and put big engines in them. They were “the shined-up cars with hot engines” in them you sometimes saw in Lygon Street, Carlton (transcript p. 8).
23 However, the plaintiff was no longer able to do this because of the amount of standing, bending and lifting involved. He felt upset and frustrated that he could not carry out this work any more. He had owned eight cars prior to the accident but had since sold most of his cars to support himself.
24 Prior to the accident, the plaintiff used to go to country race meetings about twice a month to race drag cars but he sold his drag car because he knew he would not be able to physically cope with drag racing any more. In addition, he could no longer ride his motor bike, walk the dog or mow the lawn (first affidavit pp. 8-9).
25 With respect to work, the plaintiff gave evidence that he had enjoyed his work as a courier driver and said that he “would not even call it work, it was fun to drive around and get paid for it” (transcript p. 10). He could no longer work as a courier driver as he was not able to cope with the driving and level of activity.
Physical injury medical opinion
Plaintiff’s medical experts
26 With respect to the his physical injuries, the plaintiff’s case, in essence, is that he suffered significant soft tissue injuries to his lumbar spine, left hip and left leg in the accident. In support of this claim, he relies on the opinions of Dr Marco Sorsok, Ms Carmen Villegas, Dr John Pragastis, Dr Clayton Thomas, Mr Gary Grossbard, Dr John Pantazopoulos and the Victorian Rehabilitation Centre.
i) Dr Marco Sorsok
27 Dr Sorsok, the plaintiff’s initial treating GP, reported that the plaintiff attended the Silverton Medical Clinic on 7 July 2008. The plaintiff had informed him that he had been hit by a car on 4 June 2008 and that he had gone to the Emergency Department of the Valley Private Hospital. On examination, the plaintiff was tender in the lower lumbar paraspinal muscles, with a reduced range of movement of his lumbosacral spine, there was no, sensory loss or motor loss.
28 The plaintiff attended the clinic on five other occasions. He was referred to a physiotherapist and provided with WorkCover certificates of capacity in relation to returning to work as a courier driver with restrictions as to lifting and hours.
ii) Ms Carmen Villegas
29 Ms Villegas, the plaintiff’s first treating physiotherapist, reported that the plaintiff was referred to her on 9 July 2008 for physiotherapy treatment for injuries sustained in the transport accident. The plaintiff complained of intermittent pain in his left lateral hip and pain and the sensation of pressure in his lower lumbar region aggravated by sitting for more than 10 minutes, getting in and out of the car, bending forward, lifting weights and turning in bed which would wake him at night.
30 Ms Villegas provided the plaintiff with various forms of treatment which provided him with some improvement but the plaintiff was still complaining of left iliac pain and was scared of aggravating it if he went back to work. After four sessions of treatment, Ms Villegas agreed with his GP that the plaintiff could start light duties (initially working in the office or despatch room) but the defendant failed to provide such duties (report of 27 November 2009).
iii) Dr John Pragastis
31 Dr Pragastis, the plaintiff’s current treating GP, provided his solicitors with a report, dated 28 October 2011, and attended court for cross-examination.
32 Dr Pragastis reported that the plaintiff first came to see him on 9 December 2008, seeking a second opinion. When the plaintiff first came to see him, he was complaining of left-sided body pain, which had persisted since the accident. There was a slow and graduated return to work from June 2009, but the plaintiff became psychologically unwell so Dr Pragastis referred him to Mr John McCaffery, a psychologist.
33 The plaintiff gave Dr Pragastis a history in October 2011, which included paresthesia of the side of the left leg which was aggravated by movement, left hip pain and limited movement, numbness in the left lower limb and thigh at night and that he had suicidal ideations and had cut his wrists and had compulsive self-harming thoughts.
34 Although the prognosis was that the plaintiff was currently unfit for work due to his psychological problems and soft tissue injuries and pain, as he was motivated to return to work, Dr Pragastis was guardedly optimistic in his report. He believed that with program conditioning and psychological therapy, the plaintiff will return to work albeit not in a physical capacity as a courier driver.
35 When he gave evidence, Dr Pragastis was no longer optimistic about the prognosis for the plaintiff. In his opinion, the plaintiff’s capacity for work was “zero” and he believed that having regard to the plaintiff’s widespread soft tissue injuries, it would remain so for quite along time.
36 However, when he was cross-examined, Dr Pragastis agreed that the investigations carried out had not revealed any particular pathology and that he had no findings to contradict Dr Patricks (the rheumatologist Dr Pragastis sent the plaintiff to) findings on examination that the plaintiff had an excellent range of back movement (transcript pp. 63-66).
iv) Dr Clayton Thomas
37 Dr Thomas first saw the plaintiff on 9 November 2010, who on that date reported left buttock, left lower back and left flank pain with radiation into the left leg. Dr Thomas described the plaintiff as being co-operative on examination with “good general mobility”. He formed the impression that the plaintiff had “a form of soft tissue problem and that there may have been some involvement of the left sciatic nerve or some form of referred phenomena going down the right leg”.
38 Dr Thomas felt that the plaintiff had a work capacity, but that he was not able to return to unrestricted physical work. He described the plaintiff as “seeming to be quite earnest in his pursuits for rehabilitation,” and he spoke to him about arranging for a place at the Victorian Rehabilitation Centre (report of 19 September 2011).
v) Mr Gary Grossbard
39 Mr Grossbard saw the plaintiff on 9 March 2010. In his report of 17 March 2010 to the plaintiff’s solicitors, he stated that:
“This man has suffered a soft tissue injury to his left hip as a result of the incident described as occurring on 4 June 2008. His exquisite tenderness seems to be placed largely over the greater trochanter and I suspect that he may have suffered tendon injuries in this area, I also note that there is a 3cm wasting which would suggest some genuine pathology”.
40 In his opinion, the plaintiff would have some difficulty undertaking a job where long periods of climbing, standing or walking were required. He would also have difficulty driving a vehicle which required using his left foot but should be able to manage short rides in an automatic vehicle.
vi) Dr John Pantazopoulos
41 On 8 September 2009, Dr Pantazopoulos reported that the plaintiff had been seeing him for chronic back pain since 7 January 2009. It was his opinion that:
“examination, history, and clinical findings strongly suggest that Mr Aramia has suffered traumatic spinal soft-tissue injuries affecting in particular the left-sacroillic, joint, as well as the para-spinal and shoulder girdle muscles” (PCB p. 29).
42 At that stage, Dr Pantazopoulos believed that the plaintiff was currently fit to undertake some light duties but that his “employer appeared to be most unresponsive” to the recommendations made by Dr Pragastis on his medical certificates.
vii) Victorian Rehabilitation Centre
43 The plaintiff also relies on a number of reports from the Victorian Rehabilitation Centre (VRC). The two most up-to-date reports were based on observations of the plaintiff during his period of treatment at the Victorian Rehabilitation Centre from April 2011 to 24 October 2011.
44 These reports (of physiotherapist, Mr Stephen McCrea, and psychologist, Ms Rachel Kovacevic, dated 24 October 2011) reveal that the plaintiff was initially assessed by the VRC Pain Team on 15 February 2011. He commenced treatment on 27 April 2011 and completed two cycles of a four week preparatory pain problem. After this, a further introductory treatment was recommended to consolidate the gains made by him and to prepare him for more intensive treatment.
45 In the report dealing with his physical condition, the diagnosis was that the plaintiff had symptoms consistent with soft tissue injury with a chronic pain component, which included widespread pain in his spine and buttocks with referral into his left leg.
46 In terms of work capacity, he presented as a person who had “potential for work a work capacity” and it appeared that his “psychological barriers were making it difficult for him to maintain an ongoing work role”.
Defendant’s medical experts
47 With respect to the plaintiff’s physical injuries, the defendant relies on the reports of Dr David Fish, a consultant occupational and environmental physician, dated 14 August 2009, and of Mr Michael Dooley, an orthopaedic surgeon, dated 11 October 2011. In addition, the defendant relies on a CoWork vocational assessment, dated 12 September 2011.
i) Dr David Fish
48 Dr Fish reported that the MRI of the plaintiff’s lumbar spine on 21 May 2009 was normal. With respect to the plaintiff’s physical examination, his findings were that:
“Mr Aramia did not appear depressed or withdrawn. He displayed a normal gait and normal posture when standing. There was minimal low lumbar tenderness over a single point over L4/5. Range of movement was reduced in flexion but normal in extension lateral flexion and rotation. There was no thoracic tenderness or pain and no restriction of thoracic tenderness or pain and no restriction of thoracic motion. Examination of the lower extremities revealed normal power reflexes and sensation and no clinically significant wasting of thighs and calves”.
49 While Dr Fish accepted that the plaintiff “certainly suffered a soft tissue injury of the left hemi-pelvis and possibly of the low back,” he found no signs of any ongoing structural injury. In his opinion, the plaintiff was suffering from a chronic pain syndrome and any soft tissue injury he had suffered had resolved (report of 14 August 2009).
ii) Mr Michael Dooley
50 On 14 September 2011, Mr Dooley, an orthopaedic surgeon, carried out a physical examination in which he noted inter alia that the plaintiff’s left thigh measured 0.5 centimetres less than the right, and the left leg measured 0.5 centimetres less than the right.
51 Mr Dooley believed that in the accident the plaintiff had “sustained a soft tissue bruising type injury to the buttock area and possibly a soft tissue injury to the low lumbar spine”. However, he stated that:
“It is now over three years since the motor vehicle accident. In my view, you cannot not explain the constancy and intensity of Mr Aramia’s ongoing symptoms on the basis of the organic injury”.
52 In Mr Dooley’s opinion, the large majority of the plaintiff’s current presentation related to his psychological condition and not to the organic injury. Taking into account the organic injury only, Mr Dooley would have expected the plaintiff to be able to carry out some physical work and driving type work but he accepted that it would be difficult for him to gain employment in these areas.
53 From an orthopaedic viewpoint, he believed that the plaintiff would be capable of working as a car sales representative, spare parts interpreter or electronic assembler. He would also be capable of working as a youth worker.
iii) Radiological reports
54 The defendant also relies on the radiological reports. The comment on the radiological report of the MRI of the plaintiff’s lumbo-sacral spine, on 21 May 2009, was that it was a “normal study”. Dr Antony Kam, a consultant radiologist, reported on 16 June 2009 that he had looked at the MRI scan and his conclusion was that it was an “unremarkable examination of the lumbar spine”.
Finding with respect to organic injury
55 The radiological examinations carried out on the plaintiff were normal and revealed no fracture or other relevant pathology The majority medical opinion is that, as a result of the transport accident, the plaintiff suffered soft tissue injuries to the left hip or buttock area and low back.
56 However, while I accept this opinion, I am not satisfied that these soft tissue injuries resulted in any serious permanent impairment or loss of body function. This is because I accept that these injuries have largely resolved and that the plaintiff’s problems are now of psychological nature rather than an organic one.
57 There is support for this finding from Mr Dooley, who could not explain the intensity of the plaintiff’s ongoing symptoms on the basis of an organic injury and who felt a large part of this related to his psychological condition and not the organic injury.
58 In addition, there is support from Mr Fish, who reported that the plaintiff’s physical examination was essentially normal with no signs of any ongoing structural injury. In his opinion, the soft tissue injuries had resolved and the plaintiff developed a chronic pain syndrome.
59 There is also support for this finding in the concession made by Dr Pragastis in cross-examination, that he had no notes anywhere of the plaintiff having a limited range of motion of the back (transcript p. 64) and that Dr Patrick had informed him that the plaintiff had an excellent range of back movement and clinical examination was unremarkable (transcript pp. 65-66).
60 In addition, this finding is supported by the diagnosis of the Victorian Rehabilitation Centre which, in essence, was that the plaintiff had symptoms consistent with a soft tissue injury with a chronic pain component and that he had potential for work but his psychological problems were making it difficult for him to work. It is also not inconsistent with the fact that both Dr Thomas and Dr Grossbard were of the opinion that the plaintiff had a physical capacity for lighter work.
61 In light of my finding with respect to the nature of the plaintiff’s physical injuries, I dismiss the plaintiff’s application with respect to his physical injury in that I am not satisfied that the injury, when judged by comparison with other cases in the range of possible impairments or losses, may be fairly described at least as, very considerable and certainly more than “significant” or “quite marked”.
Psychological injury medical opinion
62 With respect to his psychological injury, the plaintiff’s case is that he suffers from depression, anxiety and post-traumatic stress disorder. The plaintiff relies, in particular, on the reports and evidence of his treating psychologist, Mr McCaffery. In addition, he relies on the medico-legal reports of four consultant psychiatrists, Dr Paul Kornan, Dr Albert Kaplan and Dr Hillol Das.
i) Mr John McCaffery
63 Mr McCaffery provided the plaintiff’s solicitors with six reports and was cross-examined.
64 On 22 January 2010, using the Depression Anxiety and Stress Scale (DASS), Mr McCaffery assessed the plaintiff’s psychological state as “extremely severe”. The plaintiff’s test results on the post-traumatic stress disorder checklist were also consistent with this disorder and Mr McCaffery was of the opinion that the plaintiff was in “very considerable need of appropriate psychological treatment”. In addition, that he had no capacity for work (report of 25 January 2010).
65 In his report of 9 February 2010, Mr McCaffrey described the plaintiff as presenting in “a distinctly agitated, frustrated and aggravated emotional state”. On that occasion, the plaintiff stated that he “gets angry with everything, loses his mind and snaps too early” and that “he has lost friends, money, his sense of humour and capacity to mix socially”. Mr McCaffery was of the opinion that the plaintiff was “in very considerable need of appropriate psychological treatment, lest his condition deteriorated”.
66 In his report of 28 April 2011, Mr McCaffery reported that the plaintiff’s attendances had continued but with some irregularity. He believed that the plaintiff had “a moderately improved psychologically-based incapacity for any work at this time, i.e. a change away from the earlier recorded total psychologically-based incapacity”.
67 However, in his most recent report, Mr McCaffrey’s diagnosis was that the plaintiff was still suffering “an adjustment disorder with both depression and anxiety which condition was now chronic”. With respect to the plaintiff’s work capacity, Mr McCaffrey was of the opinion that the plaintiff “had a moderately high psychologically-based incapacity for any work, which was solely tied to the onset of physical injury and its non-resolution”. On the balance of probabilities, he considered that the plaintiff’s psychological state would remain more or less the same for the foreseeable future (report of 22 March 2012).
68 When giving evidence, Mr McCaffery adopted the contents of his reports as being true and correct. He confirmed that his current diagnosis was as stated above. Further, that there was no change in the plaintiff’s condition from when he saw him the year before and he had no capacity for work, or pre-injury duties or any alternative now and in the foreseeable future (transcript p. 38).
69 Mr McCaffrey described the plaintiff as someone who “was completely flat,” meaning that the plaintiff was “not able to change his motivational level” or to “manage much of anything” (transcript p. 38). He described the plaintiff as being “psychologically lost,” and the future as being “disappointingly bleak because there has been no change” (transcript p. 39).
70 In cross-examination, Mr McCaffrey agreed with senior counsel for the defendant that, if the court accepted that the plaintiff “was able to go out and visit friends, communicate, appear to understand and communicate lucidly in the witness box et cetera, that in terms of the spectrum of people that he had come across in his practice, the plaintiff “was not one of the more severe ones”.
71 However, shortly afterwards, his evidence was that:
“it is severe -this fellow has not been able to make the psychological changes that I regard as necessary for him to begin the process of looking at a return to some independent employment. He was an independent contractor before. My background is in occupational psychology, has been for many years, and of course under these circumstances that’s one of the primary aims of psychological treatment to explore the possibility of return to work as an independent activity.”
72 In Mr McCaffrey’s opinion, “one of the primary aims of psychological treatment was to explore the possibility of return to work as an independent activity and the plaintiff could not do this”. In spite of prompting and encouragement the plaintiff’s mind state was such that “he could not get past the situation he found himself in” (transcript pp. 51-52).
73 In re-examination, Mr McCaffrey’s evidence confirmed his opinion that the plaintiff’s work capacity from a psychological point of view was a total incapacity now and in the foreseeable future (transcript p. 57).
ii) Dr Paul Kornan
74 When he first saw the plaintiff, Dr Kornan diagnosed him as presenting with “a post traumatic stress disorder and an adjustment disorder with depression”. The plaintiff was incapacitated for employment due to his psychiatric reaction and the his prognosis was uncertain given that he was someone “of a very rigid forceful and direct temperament” (report of 3 March 2010).
75 The second time Dr Kornan saw the plaintiff, while he noted no psychotic features in his presentation, Dr Kornan described the plaintiff’s mood as showing “someone with anhedonia, anger and depression, and ongoing subjective distress, as well as features of emotional liability and social withdrawal.” In his opinion, the plaintiff’s basic personality type was such that he would react poorly to his psychiatric difficulties and his prognosis was less favourable given the lack of improvement (report of 27 January 2011).
76 When Dr Kornan saw the plaintiff again on 13 September 2011, he described him inter alia as being “apprehensive and agitated throughout the interview and as appearing depressed and disillusioned”. On this occasion, Dr Kornan diagnosed the plaintiff as having “an adjustment disorder with mixed disturbance of emotion and conduct and a post-traumatic stress disorder”.
77 While the plaintiff’s impairment levels were less at this stage as compared to previously, this was because there was less in the way of post-traumatic stress disorder and an increased adjustment disorder aspect. The plaintiff remained incapacitated for employment and had an ongoing degree of disability which remained the same. His prognosis remained poor into the foreseeable future.
iii) Dr Albert Kaplan
78 Dr Kaplan provided the plaintiff’s solicitors with two reports, dated 18 February 2009 and 23 March 2009. In his opinion, the plaintiff was suffering from “an adjustment disorder with mixed anxiety and depressed mood. His condition was related to his physical injuries, his chronic pain and the impact the pain was having upon his life, including his physical limitations and his inability to work as a courier”.
79 Dr Kaplan found no indication that the plaintiff was consciously exaggerating his physical injuries. With respect to the plaintiff’s work capacity, he was of the opinion that:
· his psychiatric condition and, in particular, his low frustration tolerance and impaired concentration was likely to have some impact upon his work capacity; and
· if his physical injury resolved or subsided substantially, it was likely that his psychiatric condition would resolve and there would be no impediment from a psychiatric point of view for him undertaking his pre-injury employment.
iv) Dr Hillol Das
80 In his report to the plaintiff’s solicitors of 17 April 2010, Dr Das diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood. In his opinion, the plaintiff did not have the psychiatric capacity to perform the duties and hours outlined in an attached return to work plan. Whether or not the plaintiff would be able to return to his pre-injury duties depended upon the outcome of his pain management and the treatment of his physical injury.
v) Victorian Rehabilitation Centre report
81 The plaintiff’s psychological assessment included that he had reported experiencing a range of depressive symptoms since the accident, including low mood, irritability, difficulties with concentration, a loss of interest in activities previously enjoyed, depressive cognitions, withdrawal from social contact, disrupted sleep patterns, increased fatigue and difficulty finding the initiative to do things.
82 The plaintiff’s depressive symptoms were reported by his score on the depression sub-scale of the Depression Anxiety Stress Scale (“DASS”), as falling within the extremely severe range. His score on the anxiety sub-scale of the DASS, 21, also fell in the extremely severe range. His score on the stress sub-scale was within the severe range.
vi) Associate Professor George Mendelson
83 The defendant relies on the opinion of Associate Professor Mendelson, who does not accept that there is any basis for the diagnosis of post-traumatic stress disorder or that the plaintiff has extremely severe depression and anxiety.
84 Associate Professor Mendelson described the plaintiff’s mental state on examination as being “resentful and aggrieved”, but with “no evidence of lowering of effect or emotional lability”. While he accepted that the plaintiff had described emotional symptoms that were secondary to his pain complaints, with alleged resulting restrictions on his activities, Associate Professor Mendelson considered that these symptoms were due to “an understandable psychological reaction” and “not due to a diagnosable psychiatric disorder”.
85 Associate Professor Mendelson found no indication that the plaintiff had any loss of work capacity due to a mental disorder and no indication that he required treatment for any diagnosable mental disorder. In his opinion, the plaintiff should be involved in a pain management rehabilitation program at a reputable multidisciplinary pain management centre (report 17 February 2011).
vii) Vocational assessment
86 The defendant also relies on a co-work vocational assessment, dated 12 September 2011.
87 This report concluded while the plaintiff was unfit to return to his pre-injury duties considering his qualifications, vocational experience, training, current skills and interests, there are a number of suitable occupations which were within his physical capacities. They included motor vehicle sales person, spare parts interpreter, electronic assembler and packer
Finding with respect to psychiatric injury
88 I accept Mr McCaffrey’s opinion that, as a consequence of the accident, the plaintiff is suffering from an adjustment disorder together with depression and anxiety. I prefer his opinion to that of Associate Professor Mendelson as Mr McCaffrey has been the plaintiff’s treating psychologist and he had the advantage of observing the plaintiff over a period of time (i.e. he saw the plaintiff on 23 occasions). Associate Professor Mendelson, on the other hand, only saw the plaintiff on one occasion for the purpose of preparing a medico-legal report.
89 In addition, Mr McCaffrey’s diagnosis is supported by Dr Kaplan’s diagnosis that the plaintiff is suffering from an adjustment disorder with mixed anxiety and depressed mood and by the diagnosis of Dr Das of an adjustment disorder with depressed mood. While Dr Kornan’s diagnosis was slightly different, being an adjustment disorder with post-traumatic stress disorder, it supports the finding that as a consequence of the transport accident the plaintiff has developed a mental illness.
90 The legal principles in relation to psychiatric or mental disturbances claimed to be suffered as a consequence of a transport accident are well-established. With respect to s.93(17)(c) of the Act, namely a severe long-term mental or severe long-term behavioural disturbance or disorder, Mobilio v Balliotis [1998] 3 VR 833 establishes that serious cannot be equated with severe. Ormiston A J stated that severe was stronger in terms of significance or gravity than serious.
91 Turner v Love (1995) 21 MVR 314 and Hunter v TAC [2005] VSCA 1 establish that consideration of the severity of a mental condition or disorder should not be restricted to an examination of the symptoms of the condition, but should include an examination of all the consequences including treatment.
92 After considering the plaintiff’s mental state before the transport accident and his symptoms since then, including his treatment with Mr McCaffrey, I accept that as a consequence of the accident he has developed a severe long-term mental disturbance or disorder.
93 In his first affidavit, the plaintiff deposed that:
· His moods and personality have changed a lot since the accident.
· He is easily irritated and avoids spending time with some friends.
· He often thinks about the accident and has flashbacks of the red car coming towards him.
· When he is driving, he is cautious and sometimes overly careful.
· He often feels depressed and has been drinking a lot of alcohol and smoking more frequently.
· At night he lies in bed thinking about how his life has changed and has difficulty getting to sleep.
· He has become very snappy with his girlfriend
· In early 2009, he tried to cut his wrists with a razor blade and, in September 2009, he hung up a rope with the intention of hanging himself (first affidavit p. 6).
94 The affidavit is consistent with the symptoms the plaintiff described to Dr Kornan, Dr Das, Dr Kaplan, Mr McCaffery and Associate Professor Mendelson, and included being mentally and physically tired, constantly stressed, problems with sleeping and, at times, feeling angry and quite sad.
95 When he was cross-examined, the plaintiff conceded that he had given some doctors a history that sometimes he visited friends and had a coffee with them at their work or at a coffee bar. However, in essence, his evidence was that he had “developed all these problems” in his life and now he could not talk to people. Before he had tried to keep himself occupied but now he was basically by himself all the time (transcript pp. 27-28).
96 The plaintiff’s evidence was supported by the affidavit of his de facto partner, who deposed that since the transport accident he had become a moody person who often burst into spontaneous fits of anger. She described his personality before the accident as being happy-go-lucky while after the accident his personality changed to being depressed, moody and negative about his life (affidavit of 27 October, PCB p. 18d).
97 The plaintiff has been treated for his condition by Mr McCaffery but unfortunately there has been little improvement. While he is currently not receiving psychiatric treatment, Dr Das reported that the plaintiff had told him that he had been referred to a psychiatrist but he did not continue feeling “I’ve got enough problems, I don’t want any more pills and I don’t want to have an addiction” (PCB p. 86q).
98 While in his closing address, senior counsel for the plaintiff submitted that there was no evidence of any thought disorder or disability in the plaintiff’s thinking, I note that Dr Kornan referred to the plaintiff as having a “very rigid forceful temperament” and as “being someone who would react badly to psychiatric difficulties”.
99 I find this assessment to be consistent with my observations of the plaintiff when he gave evidence. His manner was that of someone with considerable underlying anger at his predicament and his answers to questions were sometimes terse and unnecessarily aggressive. I accept Dr Kornan’s opinion that the plaintiff’s basic personality type is such that he has not reacted well to his psychiatric illness.
100 With respect to his ability to work, the plaintiff’s evidence was essentially that he wanted to work and if he was offered a job, he would give it a go. However, he knew that he would not last as when his pain got to a high level, he got frustrated with it. He would “just get frustrated and angry”. Someone could say the wrong thing and he would “crack up” (transcript p. 10). He had no patience and could not “emotionally or psychologically endure consistent work” (transcript p. 34).
101 I accept the opinions of Dr Kornan, Dr Kaplan, Dr Das, Mr McCaffrey and Dr Pragastis that, from a psychiatric viewpoint, the plaintiff is incapacitated for work. I also accept that the plaintiff’s domestic, social and recreational life has been affected adversely by psychological condition and that his prognosis is poor.
102 For the reasons set out herein, I am satisfied that the plaintiff has a “serious injury” within the meaning of paragraph (c) of s. 93(17) of the Act.
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